Department of Education delegates their duty to schools

The Department of Education, delegates their duty in relation to students not attending religious instruction to schools. The only excuse they give for this behaviour is that “a one size fits all solution does not suit all parents”. There are no regulations or statutory guidelines in place.

The Catholic Church has Guidelines in place at primary and second level, that interpret the Constitution and law according to their own analysis and ideological position for  the religious education of all children.

It is the duty of the Minister for Education under Section 30-2(e) of the Education Act 1998 to ensure that students do ‘not attend’ any subject that is against the conscience of their parents.

The Oireachtas delegated their Constitutional responsibility and duty to the Minister for Education because Article 44.2.4 of the Constitution states that:-

“Legislation providing state aid to schools shall not discriminate between schools under the management of different religious denominations, nor be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school.

Before the Education Act was enacted, Rule 69 of the Rules for National Schools was in place, this says that students should not be present at religious instruction and Section 7 of the Intermediate Education (Ireland) Act 1878 states that students should not be permitted to remain in attendance without the consent of their parents. Rule 69 of the Rules for National Schools and Section 7 of the Intermediate Education (Ireland) Act 1878 are still in place.

The Constitutional responsibility and duty for the right to not attend religious instruction in school lies with the Oireachtas as only the Oireachtas can make legislation (Article 15.2.1 Irish Constitution).  This states that:-

“The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State. “

Because of Article 15.2.1 of the Constitution neither the Oireachtas nor the Minister has any authority to delegate this duty to Patron bodies or schools. Despite this the duty with regard to not attending religious instruction is delegated by the Minister to schools, they refer to the Guidelines issued by the Catholic Church. The ETBs also have rules around not attending religous instruction. They also interpret Constituitonal and legal rights.

Schools simply ignore the Constitutional right to ‘not attend’ religious instruction and interpret it as ‘opt out’ or ‘not participate’ and leave students sitting in the religion class. They also interpret what is or is not religous instruction under Article 44.2.4. The Constitution clearly says ‘not attend’ and the Supreme Court has always upheld the rights of parents in relation to the religius education of their children. Patron bodies and schools have no legal authority to interpret Constitutional and legal rights.

In 2013 the Supreme Court found that:-

“As Hanna J. observed in the Pigs Marketing Board case and as the Gavan Duffy, O’Donoghue, and Lynch exchange in 1937 illustrates, if in truth any piece of regulation amounted to truly delegated legislation, it would offend Article 15, since it is plain from the very language thereof, and indeed the constitutional structure, that the function of legislation is one that cannot be delegated by the Oireachtas to any other body. Indeed the case law since that time can be understood as an attempt to seek to delineate the boundary between permissible subordinate regulation, and the abdication, whether by delegation or otherwise, of the lawmaking authority conferred on the Oireachtas by the People, through the Constitution.“ (McGowan and Ors v Labour Court – Supreme Court 2013)

Families from minority backgrounds are left dealing with Patron bodies and schools in relation to their Constitutional and legal rights. The Oireachtas has absolved itself of its duty to ensure that children can attend any school in receipt of state aid and not attend Religious Instruction.